Kerala High Court
Valummel Thommachan Alias Thomas vs The State on 26 November, 1993
Equivalent citations: 1994CRILJ1738
JUDGMENT L. Manoharan, J.
1. Accused, Thoramachan alias Thomas was charged under Sections 447 and 302, I.P.C. for having caused the death of his elder brother Augusty at about 10.45 p.m. on 5-2-1989 after criminally trespassing into the court yard of the house of Augusty. Learned Additional Sessions Judge. Kozhikode Division tried the accused, found him guilty and sentenced him to undergo simple imprisonment for one month under Section 447, IPC and to undergo imprisonment for life under Section 302, I.P.C. with a direction that the sentences shall run concurrently. Accused challenges the said finding, conviction and sentence in this appeal.
2. The matrix of the prosecution case is that the relationship of the brothers were not cordial. Some time before the occurrence which took place at about 10.45 p.m. on 5-2-1989, the dog belonging to Augusty bit the cat belonging to the accused. Accused got wild and he called abusive words against Augusty. At that time, Augusty was not in his house. On his return, Augusty along with his wife P.W. 2 and children while was taking supper in the verandah of their house, accused who was residing in the neighbourhood came to the court yard and again started calling out abusive words. After supper, when Augusty came to the steps leading to the place where water was kept for washing, accused reached him and inflicted a stab injury on the left side of his chest. He (accused) then inflicted several stab injuries on Augusty; seeing this PW 2 interfered with a chopper and inflicted cut injuries on the accused to save her husband Augusty. Hearing the cry of PW 2 and her children, PW6, a relative and neighbour reached there. He saw the accused standing nearby with MO 1 dagger. He wrested MO 1 from the accused. Augusty was taken to the verandah and later he was taken to the Primary Health Centre, Perambra, where PW 12 examined and pronounced him dead. He issued Ext. P-13 wound certificate concerning Augusty. Accused who sustained injuries too went to the same Primary Health Centre at 4 p.m. on 6-2-1989. He was attended by PW 13, the doctor attached to the Primary Health Centre. He issued Ext. P. 14 wound certificate. Later he referred him to the Medical College Hospital, Kozhikode. He was treated there. DW-1, duty doctor in Surgery Department, Medical College, Kozhikode produced Ext. D-13 case sheet. He also proved Ext. D-14 reference card issued to the accused when he was discharged from the hospital.
3. P. W. 1, son of Augusty went to the police station and tendered Ext. P1 F. I. statement before PW-15, Head Constable at 12.30 a.m. on 6-2-1989 on the basis of which PW-15 registered Ext. P1(a) FIR against the accused under Sections 447 and 302, I.P.C. The investigation was taken over by PW-16, Circle Inspector of Police. He held Ext. P-10 inquest on the deadbody of Augusty on 6-2 1989 under which he seized MOs, 2, 4, 8 and 9. then he proceeded to the scene and prepared Ext. P8 scene mahazar and seized MOs. 3 and 6. PW-11, Assistant Professor of Forensic Medicine, Medical College, Kozhikode conducted autopsy on the deadbody of Augusty and issued. Ext. P-11 post-mortem certificate. On 6-2-1989 PW-6 producere MO-1 before PW-16 who seized the same under Ext. P-16. He questioned the witnesses.
4. As per the complaint by the accused PW-16 registered Crime 34 of 1989 under Section 324 read with Section 34, I.P.C. against PWs. 2 and 3. After investigation, the said case was referred as per Ext. P-17 report stating that PW-2 inflicted the injuries in exercise of her right of private defence to save her husband from the attack of the accused, PW-16 after completing the investigation laid the charge sheet against the accused for the offence punishable under Sections 302 and 447, I.P.C.
5. Prosecution examined PWs. 1 to 16, produced Exts. P1 to P17 and identified MOs. 1 to 9. On the side of the defence Exts. D-1 to D-12 case diary contradictions of PWs. 1 to 4, 6 and 8, Ext. D-13 case sheet of the accused and Ext. D-14 reference card issued to him were marked, and DW-1 was examined.
6. When the accused was questioned under Section 313, Cr. P.C. he denied the prosecution case. He filed a statement under Section 233(2) of the Cr. P.C. wherein he reiterated that he is innocent and said that the families of his brother and himself are on inimical terms on account of chastising PW-4, son of deceased for entering into the property looked after by him; that on the date of occurrence at 9.30 p.m. the dog belonging to the deceased came near his house and bit his cat, the cat ran towards the house of the deceased chased by the dog, and that with the aim of rescuing the cat from the dog, when he reached the southern side of the court yard, deceased obstructed him and caught hold of him. When he attempted to shake himself free from his brother, he took out a knife from his waist and inflicted a stab injury on the left side of his chest. It was followed by a scuffle for the knife; but then PW2 inflicted a cut injury with a chopper and PW 1 threw a steel chair against his head. Out of fear he wrested the knife from his brother and used it to save himself from the attack of the aforesaid three persons. It was in that, his brother sustained the injury.
7. PW 11 said that he noted four incised injuries, four abrasions and one contusion on the dead body of Augusty. Injuries 1, 2, 3 and 7 in Ext. P-11 are incised injuries of which injury No. 1 is a penetrating incised injury. He said, injury No. 1 is on the front of the chest 3.2 x 0.5 c.m. The wound entered the left chest cavity by cutting the costal cartilage of second rib and firs! and second intercostal muscles on the left side obliquely; the costal cartilage was cut 2.5 c.m. outer to midline. In the left chest cavity the wound transfixed the upper lobe of left lung. The wound made a cut of 2 x 0.4 c.m. in the medinstinal soft tissues and the wound cut the front wail of the left pulmonary artery 1 x 0.3 c.m. full thickness. The wound had a depth of 9 c.m. He deposed that injury No. 1 was capable of causing the death of the person. According to him, the incised injuries and the linear abrasions 5 and 6 could be caused by a weapon like MO-1. Ext. P-11 states that the deceased died of bleeding due to the incised penetrating wound sustained to the left side of front of chest (injury No. 1). In the cross-examination PW-11 said that incised injuries except injury No. 1 could be caused if during the course of a scuffle between two persons for MO-1, it strikes the body of one of them.
8. The seat of injuries and its nature particularly that of injury No. 1 would clearly show that the death of Augusty was homicide. The main question for adjudication is whether Augusty sustained injuries in the manner alleged by the prosecution. As noticed in his statement under Section 313, Cr. P.C. what the accused maintained is that when the deceased along with PWs. 2 and 3 attacked him, for fear of his life, he wrested MO-1 from the deceased and used it to save himself from the attack. Thus, the case of the accused is that right of private defence of the body. But simply because the accused has pleaded private defence, that cannot in any way affect the burden of the prosecution to prove the prosecution case beyond the shadow of reasonable doubt. In this connection it is important to bear in mind that as per Section 105 of the Evidence Act it is for the accused to prove his case when it falls within an exception, and the court should presume the absence of such circumstance. So the court is entitled to presume the absence of any circumstance which would enable the accused to sustain a claim of private defence. Yet, it is important to note that the burden of the accused to prove his case of private defence is not as onerous as that of the prosecution; whereas the prosecution has to prove the prosecution case beyond the shadow of reasonable doubt, the accused need discharge his burden by preponderance of probability. For sustaining such a plea, it is not necessary that the accused should have a specific plea of private defence nor is it necessary for him to adduce independent evidence if he can sustain his case of private defence by relying on the very evidence tendered by the prosecution.
9. Whereas the learned Director General of Prosecution would maintain that the prosecution has successfully discharged the burden by the evidence of PWs.1 to 4 the occurrence witnesses, the medical evidence, and the evidence regarding the scene of occurrence, the learned counsel for the appellant would maintain that it. is a clear case where the accused is protected by right of private defence particularly when he has sustained injuries and has undergone treatment. Reliance was placed by the learned counsel on the evidence of DW-1 and Ext. P-13 case sheet. It was contended that the accused came to the compound of the deceased to rescue his cat which was chased into that compound by the dog belonging to the deceased and that it was then that the deceased, his wife PW-2 and PW-3 together attacked him. It is also urged that inasmuch as the property in which the deceased resided belonged to their father, his entry cannot amount to trespass. The learned counsel stressed, though a case was registered as per the information of the accused only a refer report was filed.
10. Well, the contentions present flashes apparently in favour of the accused, that he sustained injuries, that though the occurrence. was in the court yard of the deceased, the properly belonged to their father, and therefore his entry into the court yard would not constitute trespass much less criminal trespass particularly when he came there to rescue his cat from the jaws of the dog belonging to the deceased, and adding to this, though on his information a case was registered on his sustaining injuries at the hands of deceased, PWs. 2 and 3, instead of filing a charge sheet the investigating agency filed a refer report. This, we shall examine in the subsequent paragraphs.
11. In considering the rival contentions one should not lose sight of the scope of the . adjudication, for unless the same is clearly understood there could be every possibility of appreciating the evidence in the wrong direction resulting in wrong conclusions. In the context of the claim of private defence it is of paramount importance to see whether the accused was the aggressor. As per the case maintained by the prosecution the accused was the aggressor who according to it criminally trespassed into their compound and assaulted the deceased with MO-1, PW-2 used force to save her husband, and in that attempt accused sustained injuries. This case, the prosecution has to prove, which would also be fitting explanation for the injuries sustained by the accused. Thus it becomes necessary to appreciate the evidence tendered by the prosecution in the context of the evidence in support of the defence case. There are now two versions as to how the occurrence took place. It is obligatory for the prosecution to prove that the occurrence took place in the manner alleged by the prosecution.
12. Before dealing with, the prosecution evidence, we may first advert to the contention that the whole investigation is tained and hence is vitiated as instead of filing a charge sheet as per the information given by the accused only refer report Ext. P-17 was submitted. This was illegal according to the accused. If as per the information by the accused, a charge sheet is filed, both the main case and the counter case have to be committed so that, both the cases could be tried by the same court, trial in one being followed by the other and judgment pronounced in succession. But there is no rule that it is compulsory for the investigating agency to file a charge sheet as per the information given by the accused irrespective of the result of investigation. If the investigating agency finds that the facts stated by the informant are false he need not file a charge sheet. Likewise if upon investigation it is found that the injuries were inflicted in exercise of right of private defence, it is not incumbent on the investigating officer to file a charge sheet. In such a situation the informant can file a protest complaint, Augustine v. State, 1982 Ker LT 351 : (1982 Cri LJ 1557) (FB). In the case of "case and counter" the case as per the protest complaint after conducting inquiry also would be committed. Here, no protest complaint against Ext. P-17 was filed. Ext. P-17 says that PW-2 inflicted the injuries on the accused in exercise of her right of private defence to save her husband from the attack of the accused. Therefore, a challenge against Ext. P-17 that the investigation is tainted merely because 0.0 charge sheet was filed cannot be sustained. We do not mean, that the failure to file a protest complaint would result is an adverse inference being drawn against the accused. As noticed, the prosecution has to place whole occurrence before Court.
13. Now we shall advert to the evidence tendered by the prosecution. Prosecution primarily relies on the evidence of PWs. 1 to 4, the occurrence witnesses in support of the prosecution case. PW-2 is the widow of the deceased and PW-1 is her son, aged 16 years, PW-3 is the daughter, aged 14 years and PW-4 is another son, aged 11 years. These witnesses have sworn to the sequence of events that ultimately resulted in the death of Augusty. They said that some time before the occurrence. Thomas called abusive words alleging that his cat was bitten by their dog, that after some time when Augusty came home and when they were taking supper in the verandah of their house at about 10.30 p.m. on the date of occurrence, accused came to their court yard and again shouted abusive words, that when Augusty stepped out of the verandah to wash his hands, accused reached him and stabbed him with MO-1. PW-2 said that, seeing her husband being attacked by the accused with MO-1, she interfered with a whopper and inflicted cut injuries on the accused to save her husband.
14. Learned Director General of Prosecution would maintain that the said version of PWs. 1 to 4 is effectively corroborated by Ext. P1 F. I, statement as well as Ext. P8 scene mahazar. On the other hand, learned counsel for the appellant made severe attack against the evidence of PWs. 1 to 4 contending that their evidence suffers from the vice of suppression, contradiction and above all they are inimical towards the accused and are interested in the deceased. In such circumstance, it was urged by the learned counsel for the appellant that no reliance at all can be made on the evidence of PWs. 1 to 4.
15. According to the learned counsel for the appellant, as a matter of fact, the chasing of the dog and the deceased sustaining injuries are part of the same occurrence. Since the accused entered the court yard of the deceased, only for the purpose of rescuing the cat which was a spontaneous reaction on seeing his cat being chased by the dog, such an entry not being with an intention to commit offence or intimidate, insult or annoy any person would not amount to criminal trespass As noticed, according to her since PW-2 said, the property belonged the father of the accused and deceased, the entry of the accused cannot constitute even trespass.
16. In appreciating these arguments, the scene of occurrence gains much importance. In Ext. P-8 scene mahazar the description of scene of acurrence is given. Ext. P-15 plan proved by PW-14, the Village Officer also shows the scene of occurrence. It also shows the boundaries of the court yard. The scene is within the court yard just one meter and 12 cm. South-East of the house and just adjacent to the steps leading to the court yard. Even in the 313 statement the accused states that when he came to the court yard, the confrontation took place. PW-16 seized MO-16 bloodstained soil from the scene under Ext. P-8 scene mahazar. In such circumstance, there cannot be any dispute as to the location of the scene of occurrence. This has got relevance in deciding as to who was the aggressor because it is a case where the accused too has sustained injuries and a case too was registered as per his complaint though the same was referred under Ext. (-17). As noticed, there is a charge under Section 447, IPC also against the accused. Now the justification attempted by the accused is, since his entry was not with the intention to commit an offence or to intimidate, insult or annoy the deceased or his family, the same cannot amount to criminal trespass. Consequently according to him the sheer entry to the court yard cannot lead to the conclusion that he was the aggressor. The claim that, the occurrence took place as soon as he entered the court yard to save his pot cat is not admitted by the prosecution. Instead, the prosecution case is, since the dog bit the cat of the accused who was inimical, he started shouting abusive words and later when deceased came home and while was taking supper along with the members of the family, accused came there showered abusive words, and when deceased came to steps of the verandah to wash, accused attacked him. In short, according to the prosecution the two incidents were separate and the 'dog and cat affair' was the immediate motive for the accused to mount the attack on the deceased after committing criminal trespass.
17. In Ext. P-1 no specific time is given with respect to the incident in which the cat belonging to the accused was bitten by the dog of the deceased. But it is stated that the attack by the accused was on account of the dog belonging to the deceased bit the cat of the accused. It does not spell out that bite by the dog was part of the same transaction, or that attack was when accused came chasing the dog. On the other hand, it would show, that incident took place some time before the occurrence in this case. In Ext. P-17, it is stated that, some time before the occurrence in which Augusty sustained injuries, the dog of the deceased attacked the cat of the accused. There is no material to find, as a matter of fact the incident in which the cat of the accused was bitten by the dog of the deceased is part of the transaction in which the deceased sustained injuries. According to the accused PWs. 1 to 4 have embellished to the effect that the families of the accused and deceased were inimical even before the said occurrence. PWs 1 to 4 have sworn to the effect that, there was enmity on account of accused chastising PW-4 for entering into the property looked after by him (accused). Though the same is not specifically mentioned in Ext. P-1, we do not consider that, the same can in any way affect the evidence of PWs. 1 to 4 particularly when it is noticed that the accused himself in his statement under Section 313 Cr.P.C. admitted that their families were inimical as he chastised PW-4 for entering a property looked after by him, PW-4 has also sworn to such an incident. Thus the evidence on record would show that when the accused learnt that the dog of Augusty had bitten his cat that became the immediate motive, it happened when he was smouldering with rage. The evidence in this regard is positive that, the accused entered the court yard of the deceased at about 10.45 p.m. on 5-2-1989; and what happened later is spoken to by PWs 1 to 4.
18. Now, it becomes necessary in this context to advert to the argument of the learned counsel for the appellant against the acceptability of the evidence of these witnesses. True, PWs. 1 to 4 are the widow and children of the deceased. Therefore, it can be said that they are interested in the prosecution and are even inimical to the accused. The question for consideration is whether on that score the evidence of these witnesses can be rejected. The time of occurrence and the scene of occurrence would bear pivotal importance in considering this aspect. The occurrence was at about 10.45 p.m. on 5-2-1989 and the scene of occurrence was near the steps of the verandah of the house leading to the court yard. When an occurrence takes place at such scene at such an hour, normally the natural witnesses are the occupants of the house. The evidence does not show that the place is a thickly populated area. The Supreme Court in the decision in Chandra Mohan Tiwari v. State of M.P., held that merely because the witnesses are interested and had animus towards the accused, their testimony cannot be rejected particularly when the occurrence took place inside the house around midnight. The difference here is, the occurrence was at about 10,45 p.m. and it was just at steps of the verandah. The principle in the said decision would apply to this case also. But the learned counsel for the appellant urged that PW-5 though was examined as an occurrence witness, turned hostile to the prosecution. What he has stated is, while he was at his house on the date of occurrence at about 10 p.m. he heard a cry from the house of Augusty and when the reached there, he saw Augusty lying in a pool of blood and the accused, his wife and daughter standing in the court yard. He did not see the occurrence as by the time he reached, the occurrence was over. In such circumstance, simply because PW-5 turned hostile, that cannot in any way affect the testimony PWs. 1 to 4.
19. Yet another attack made by the learned counsel for the appellant is except PW-2 the other occurrence witnesses do not even make an attempt to explain the injuries sustained by the accused. Let us now note the injuries sustained by the accused. PW-13 issued Ext. P-14. He referred accused to the Medical College Hospital, Kozhikode. DW-1 who treated him has deposed with reference to Ext. D-13 case sheet that the accused had three incised injuries, one of which was on the left side of the chest 2 cms. deep, 3 cms. long and 1 cm. wide. The second injury has the same shape; but was located on the left buttock and the third incised injury was on the left thigh. He noticed two contusions; one on the forehead and another on the left scapular region.
20. The question now for consideration is whether the evidence of PWs 1, 3 and 4 is to be rejected because they did not mention to their having seen the accused sustaining injuries. PW-2 admitted to her having inflicted cut injuries on the accused to save her husband. With due regard to the age of PWs. 1, 3 and 4, the time of occurrence and the scene of occurrence, it cannot but be said in that charged atmosphere they have been excited and scared, and at that moment if they omitted the to note the injuries sustained by the accused the effect of the same cannot be projected out of proportion to contend that these witnesses are guilty of suppression.
21. The prosecution produced Ext. P-14 and examined PW-14 to prove the injuries sustained by the accused. The prosecution has also produced Ext. P-17, the refer report in their endeavour to explain the injuries sustained by the accused. Learned Director General of Prosecution maintained that the injuries are not of such serious nature as to compel the prosecution to explain them; alternatively he contended that the prosecution has also adduced evidence to explain the injuries sustained by the accused. The fact that DW-1 was examined, Ext. D-13 and Ext. D-14 were produced also is a factor to be reckoned in judging whether the prosecution has explained the injuries sustained by the accused. According to the case of the accused the injuries were inflicted by the deceased. It is necessary now to advert to the evidence of PW-6 who is related both the accused and the deceased. He said, when he reached the scene on hearing the cry, he saw the deceased lying in the verandah and that he saw the accused standing on the eastern side of the house of Augusty with a knife which he (PW-6) wrested from him. He admits that he produced it before the police, though he would maintain that it was on the same day, PW-16 said that PW-6 produced the knife before him which he seized under Ext. P-16. Thus immediately after the occurrence, the accused was seen holding the knife. The deceased had several incised injuries including a penetrating incised injury which resulted in his death. In his statement under Section 313, Cr.P.C. the accused states that PW-2 inflicted a cut injury with a chopper. The evidence on record thus firmly establishes that the accused sustained the injury in the circumstances spoken to by PW-2.
22. Learned counsel for the appellant relying on the decision in Lakshmi Singh v. State of Bihar, contended that the non explanation of the injuries sustained by the. accused at about the time of the occurrence or in the course of transaction would lead to the inference, that the prosecution has suppressed the genesis and the origin of the occurrence, that the witnesses who have denied the presence of the injuries on the person of the accused are lying and that in a case where there is a defence version which explains the injuries on the person of the accused in such circumstance would render it probable. As noticed, it is not a case where the prosecution does not explain the injuries sustained by the accused. The only question, therefore, is the adequacy of the evidence to explain the injury, PWs 1, 3 and 4 did not deny that the accused sustained injury. All that they said is, they could not notice the accused sustain injury. As noticed, in that excited moment boys of that age if failed to note the accused sustain injuries the same cannot be held against them so as to disbelieve their evidence. Of course there is evidence to show that there was light. It should be noted that the occurrence took place while the deceased and PWs 1 to 4 were taking supper; normally at that moment there should be light. Apart from the same PW-1 says that there was a kerosene lamp burning at the time of occurrence. The cross-examination of PW-3 also would show, there was light. PW-16 seized M.O. 5 lamp from the verandah under Ext. P-8 scene mahazar.
23. Another aspect to be adverted to in this connection is whether the accused is entitled to plead private defence at all in the face of the facts and circumstances of the case. As noticed, the evidence is positive that the occurrence took place within the courtyard of the deceased just at the entry of the verandah of the house. Our finding is to the effect that it was the accused who caused the injuries to the deceased. We have also found that the previous incident in which the cat of the accused was bitten by the dog of the deceased is not part of the incident in which the deceased sustained injuries. That will show that the accused's entry was for committing an offence. Then, that under law will amount to criminal trespass and that will lend support to the conclusion that he was the aggressor. An aggressor cannot claim the right of private defence; there is no right of private defence against private defence. (Mathew v. State of Kerala, (1992) 2 Ker IT 413 : (1993 Cri LJ 213). That the property in which the deceased was residing belonged to the father of the accused and deceased cannot make the entry of the accused anything other than trespass; particularly when the father is alive. PW-2 in the cross-examination stated that, though the house in which herself and her family reside and the house in which the accused and his family reside belong to the father of the accused and deceased, they are (PW-2's family) taking the income from the propery in which their house is situated. We have already adverted to the scene of occurrence with reference to the scene mahazar and Ext. P15 plan; the occurrence took place within the courtyard of the house. The evidence shows that, the deceased and family were in actual possession of the property. Though the title is with the father of the deceased and accused, that cannot give any right to the accused to commit criminal trespass, as criminal trespass is an offence against possession. It should be noted that Section 441 of the I.P.C. is aimed to protect possession. It is clear from the evidence that the entry of the accused was with the intention to commit an offence. So he committed criminal trespass. The occurrence took place within the court-yard of the deceased which was in his possession, the deceased sustained injuries at the hands of the accused as maintained by the prosecution; he (accused) inflicted the injuries after committing criminal trespass. Clearly the acused was the aggressor. On that ground also the accused is not entitled to plea the right of private defence. Not only the accused has failed to discharge his burden under Section 105 of the Evidence Act but he was not even able to create a doubt on the prosecution case. The prosecution is successful in proving the prosecution case beyond the shadow of any reasonable doubt. The finding, conviction and sentence awarded by the learned Additional Sessions Judge are only to be confirmed and the appeal is liable to be dismissed.
In the result the appeal fails and the same is dismissed.